HAWAII COUNTY CHARTER COMMISSION

Transcript of Meeting of March 8, 2000

Hawaii County Liquor Commission Conference Room,

Hilo Lagoon Center

Attendance: J. Ray, M. Herkes, R. Higashi, S. Irvine, G. Martin, G. Yoshiyama, Counsel C. Yuen

Absent: E. Alonzo, K. Balog, S. Bess, D. Kurozawa, J. Santangelo

And 8 members of the public in attendance.

The meeting was called to order at 5:15 p.m.

RAY: I’d like to call the March 8th meeting of the 1999-2000 Hawaii County Charter Commission to order. It’s 5:15 p.m. We’re in Hilo this evening in the Liquor Commission Conference Room.

Attendance. Present at this time, myself John Ray; Chair; Roland Higashi, Vice Chair; Marni Herkes; Sue Irvine; George Martin; and Gary Yoshiyama, and we’re expecting a couple more folks.

Statements from the Public. Anything you’d like to comment on that’s been suggested or related to proposed Amendments, have at it. First is Dwight. Would you like to come up and state your name, and just whatever you want to address on here.

VICENTE: Good evening. My name is Dwight Vicente. I’m representing myself. The Rice vs. Cayetano was an awakening call for the State being in violation of the U.S. Constitution. Article IV, Section 3, Clause 1 states that new states may be admitted into the Union. Read the Admission Act. The State of Hawaii was not admitted into the Union. A colony was admitted into the Union, all controlled totally by Congress. It was Congress’s doing from the beginning, going back to the joint resolution they called Treaty of Annexation of 1897. We had Americans voting here as far back as 1887 to ban that constitution. That’s where the State of Hawaii comes about from, and till today the Americans still have rights to vote here, without even renouncing their citizenship. And you have the Public Law 103-150 which states that those of Hawaiian descent never became U.S. citizens, so I find it a problem trying to vote. Saying you’re a U.S. citizen when you’re not, or in the application, you have to be a U.S. citizen to vote when the Public Law 103-150 says those of Hawaiian descent never became nothing to renounce, never was. So I find a problem with voting.

Commissions, Boards, Regents; all means by which government used to - a vehicle that is used to usurp power, okay? You got the Police Commission. Most people don’t understand when they wrote the U.S. Constitution, at that time, there was no police. By design, the police is a military force. They’re in uniform and armed. The 10th Amendment reads ‘powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.’ The original constitution, as adopted, was never amended, so all military powers rest with Congress under Article 1, Section A, Clause 11 through 18, okay? So you can’t create a Commission to usurp that power and the HRS’s 52(d), they create the Police Commission.

RAY: Dwight, looking at the larger picture, the Charter, what do you suggest as Charter Commission members? I mean, specifically you’re addressing a part of the Charter, but what -

VICENTE: Well, my view is that the State of Hawaii is illegal so they cannot create anything, any creature, besides themselves. The question is where did they get the legal authority from.

RAY: So, you’re saying this whole process -

VICENTE: Is all illegal.

RAY: Is invalid in your mind.

VICENTE: It’s in conflict with the U.S. Constitution and Declaration of Independence because when you read the Constitution, even the Admission Act, they cite Hawaii being treated under the Northwest Ordinance. We were never part of the Northwest Ordinance. That was under the Articles of Confederation which was short lived, only about two years. So, why they cite that in the Admission Act? And in keeping in tradition, they’re going to continue doing - Under that power, Congress had the authority to create a temporary government and turn that lands outside of the United States into states, but that was repealed. That’s Article 4, Section 3, Clause 2. It reads ‘Congress shall have power to dispose of’, meaning get rid of. That’s not a Article 1, Section 8 power, which is where Congress has to initiate.

RAY: I’m not a constitutional authority. I’m not an authority on the Charter, so this is all really way over my head to respond, to tell you the truth. We’re just trying to do our job in regard to the Charter.

VICENTE: But, can you usurp power over someone without their consent? Apparently Hawaii has two publics, for most people that don’t realize that. There’s a general public and there’s Hawaiian Homes Commission Act which defines one public, and I fall in between the two. I meet not the blood quantum nor am I in the general public, so I’m in limbo. And I find a problem. How can you run a government with two publics? The Constitution speak of only one, so there’s a lot of conflict in law going on right now.

RAY: But, specifically, what’s your suggestion to us? We’ve been tasked, this body formed, as part of the Charter. Every ten years we do this review. So, if you had your druthers, ideally, what would you have this Charter Commission do?

VICENTE: Well, if keeping with the U.S. Constitution, everything become nullified. We’re either in a state of nature or we’re in a state of anarchy. Anarchy is what exists right now because there’s conflicts in law, and I see that as anarchy.

RAY: Chris, do you have any - Help me out here. I think I hear what you’re saying. I mean, I think basically you’re saying everything we’re doing is not a valid process.

VICENTE: Just a waste of everybody’s time.

RAY: In regard to your interpretation.

VICENTE: I don’t want nobody usurping power over me because I’m not in agreement. It’s like a contract. I’m not in a contract with the County of Hawaii. I didn’t authorize them by consent, according to the Declaration of Independence, power to taxes by the consent of the governed. And if the public going to be in a couple of different publics, well, it’s kind of hard to be usurping power over everybody, yeah? I think it needs to be defined. Public Law 103-150 says one thing. The State Constitution says something else. The County Charter says something else. We got to know who we are.

RAY: Anybody have any response to that?

MARTIN: Yes. I’d like to refer to a question that I asked several meetings back when some of the individuals here came and asked several questions, and I asked if there was any validity to what they were saying, because as you said, John, it was over our heads, definitely over mine. But, being American Indian and knowing a little bit about that aspect, I can understand it. And I asked Chris, was there any validity, and I believe the answer came back. So, at this point again, I ask, does it warrant us going in any other direction than we’ve been going in?

YUEN: Mr. Vicente is saying, if I understand you correctly, that actually the United States could not expand beyond the original 13 colonies. Is that correct?

VICENTE: Not according to Article 4, Section 3, Clause 1. You have to be recognized as a State. The word "state" is defined in the Declaration of Independence. You have to be able to wage war, conclude peace, sign treaties and do all the things a nation state does. The State of Hawaii has no treaties, no nothing. It entered as a colony, and that goes back to the 1887 (indiscernible) Constitution and the so-called overthrow of 1893. Treaties was kept until 1898, the point that they were going to expire. That’s why U.S. citizen Dole, who became the so-called President under provisional government, never signed any treaties. The only treaty was with his own government, they called the United States.

YUEN: Well, I don’t know how detailed you want me to be in responding to your question. On the first point, Mr. Vicente does not believe that the United States government lawfully constitutes beyond the original 13 colonies. There are a lot of ways to answer that, as a lawyer. I think probably the simplest way is to point out that the United States exercises apparent authority over the 50 states, and that this is recognized by all other countries in the world. This is the general definition for how is a country recognized. It is recognized by other countries, and in international law, it appears to have authority and control over its citizens. To just give an example. If somebody claimed to be the King of France, and they said that the monarchy of France was illegally overturned, and that they are the rightful rulers of France, people would say, well, the monarchy in France has not been in existence for 150 years. You have no apparent control over this. There’s a French government that is recognized by all the governments of the world, and that’s why it is the legitimate government.

There are a lot of things that he’s brought up. I could respond to them on a point-by-point basis, but it would take, kind of, a long time to do it. Another way of answering this question, and looking specifically at the authority of the United States government over the Hawaiian Islands, that this has been upheld by a number of court decisions in the United States court system. If somebody wants to challenge the validity of that, then there really aren’t any good ways to go from that. Beyond that, I could go through a history, certainly, of how Hawaii became United States territory, and what are the legal consequences of that, but I think that what he’s talking about is at an extremely fundamental level. It can be dealt with point-by-point on that kind of level, but as I say, it would take quite a bit of time to do it.

RAY: Marni. did you have a -

HERKES: Thank you very much for coming, Mr. Vicente, and I’m interested in your point, but we were appointed as Charter Commissioners. We had a specific job to do, a role to play. The County Council confirmed us. I think we need to stay within the parameters of the things that the County government has asked us to do. I don’t think we should get outside those parameters. If it is illegal for us to change the County Charter, then I think there are avenues besides this room, and besides this Commission, that you can pursue that under. This is not the place or the time to pursue an illegal Charter Commission, if that’s what you’re saying. If that’s what you want to do, then there are other places to pursue it. We can’t help you with it. There’s nothing we can do. We’ve agreed, and been appointed and confirmed by the Council, to change the County Charter. We have to do what we have to do. Otherwise we would not be fulfilling our responsibility and we have to fulfill our responsibility.

VICENTE: Does that mean you’re going to usurp power over me?

HERKES: That means I’m going to do what the County government has asked me to do. I don’t feel it’s usurping power over you, but I certainly know that there are a lot of avenues for you to take if you feel it is.

VICENTE: Another thing I wanted to point out is that a lot of the case law dealing with so-called territories, are all based on what the Kings can do. The U.S. is arguing in the U.S. Supreme Court that the Kings of Europe is doing these things, and as a sovereign, they want to be able to do the same thing, but they don’t mention in the argument that they have constitutional authority, so you can see, they’re going beyond the constitutional authority by claiming they got a king now. Or they can amend Article 2, and replace the president with a king. He’s already acting like a king so put the crown on his head while they’re at it. Once he leaves Washington D.C., he’s no longer the President. What he’s done is vacated his office so he’s in a stationary power position, not a gallivanting king. So, I think when you look into the State Constitution, it says, I think it’s Section 3, that the State Constitution shall not be repugnant of the United States Constitution and the Declaration of Independence. Everything coming from there, that direction, and I see all the conflict coming in. That’s why Rice won. There’s conflict in law right now. The State is doing one thing and the U.S. Constitution is saying opposite. So I think that needs to be dealt with first. It’s putting the cart in front of horse. I don’t ride horse that way, or a wagon. I think that’s it.

RAY: Okay, thanks Dwight.

VICENTE: Thank you.

RAY: Okay. Patrick Kahawaiola’a, representing self.

KAHAWAIOLA’A: Myself and Aupuni O’Hawai’i. I have testimony that I’d like to pass out to all of you. I think this was addressed to Mr. Yuen back in December and we received no response from that. From your letter, Mr. Yuen wrote and told us that you had asked him to respond. He responded. We responded to that letter, and in December, the 28th, came to a meeting that was cancelled without us knowing about it. 5 o’clock the lady out front told us it was cancelled. You guys had one, I guess, some time in December that was cancelled. After notice was put out that they were going to have it, it was cancelled, but we were never informed of the cancellation, but that’s not my issue. My issue is, based on this response from your counsel, we responded to again address our issue of coming before you to say that we believe that the Charter provision, your Article I, Section 1-1, which encompasses the whole Island of Hawaii as it’s geographical limitations, or definition that what the County owns, and this Charter has all the rights on those lands. We spoke about it and Mr. Yuen addressed it, gave his perspective of what he believed based on, and he went back as far as somewhere in the Organic Act giving the counties the rights to do something in 1905, however, our response to him that we hoped to have had, and come before you to address it, because I see now that we’re here now just talking about the proposed Amendments that already this Commission has passed, or approved, in February, or some in December, but most -

RAY: Wait. These are proposed Amendments for discussion. We’re taking these out for public hearing. All we’ve done is taken a vote on that basis, so everything, including anything else, is a possibility at this time.

KAHAWAIOLA’A: Okay, that’s good for us to hear, the reason being we came forward, and I came forward, to object that our concerns, basically dealing with Article I, Section 1-1, which has great ramifications for the Native Hawaiian communities, they are not being included in this, or they’re being excluded because their lands are being included. We don’t know whether it’s in or out. That message is still being sent today, as you make proposals to the County Charter. We move to the County Building Permit Department, whatever. It’s we don’t have the jurisdiction on Hawaiian Home lands. It’s a conflict and the message is being sent to the Native Hawaiians out there that the County, through their Charter - we don’t know whether we’re supposed to, or not supposed to. And with that conflict being put out, we express to this body, because you guys are in this, have been appointed to do your appointed round, as Ms. Herkes says, she’s just here to do that, and I appreciate the fact that she wants to do that. As a Native Hawaiian, I feel that this body has not taken the opportunity to address our concerns in a fashion that we’d like to have it thrown out there and let the Native Hawaiians also come forward and tell you whether those lands that have been identified in your County Charter - remember I say, Your County Charter because, as far as I’m concerned, your County Charter, by the actions of the bodies that are now implementing it, and your Building Department is in here. Your Planning Department is in here. They sent a message to the Native Hawaiian that, no, we don’t have the jurisdiction. You guys got to go somewhere else to have your plans looked at, to have your building permits issued. So, I implore all of you, if you don’t believe me, tomorrow you guys should go to the Building Department and ask them. Because if that is the case, then obviously, in your Article I, Section 1-1, where it gives you the geographical limitations of the lands that you have jurisdiction over, is in conflict when you say that the Charter says all the lands on this island and its appendages, we have jurisdiction over. Obviously, there should be some holes in the map, that you don’t have jurisdiction over Hawaiian homes here in Ka’u, in Puna, or wherever it exists.

There’s a lot of things that are happening out there that needs to be addressed, so that’s my reason for coming by and imploring this Commission, because that’s where we got to start, just like how you were empowered to make Amendments to the Commission. I can’t do it on the eighth year. We got to come on the tenth year when you guys have been empowered to come forward to make these things, or 10 or 20 years, whenever you do that. By the same token, it gives us an opportunity. That’s why we’re here, to come to this body because, yes, we do realize that there’s other alternatives that we can go through, however, the alternatives start at A. We need to learn to start at A, then go to B. When A doesn’t do it, we go to B, we go to C, until we reach ramification, settle, resolution, or whatever it is, whether it’s the court system; whatever it has to take us. But we have an opportunity for economics, that if this body would take a look at it. We beg to differ with Mr. Yuen’s opinion. That’s the reason we wrote our differences, and hoped that this body would have addressed it. And in that fashion, we were prepared because there is a perception out here from Native Hawaiians, this Rice v. Cayetano case, however narrow the Supreme Court ruled, it did rule that there are some separate people out here that needs that have to be taken care of, so I just need for you guys to look at this and address it because I think that the Commission has a responsibility to review the Charter in such a fashion that we can reach resolution, so that make it clear so that even Native Hawaiians, as simple people as we are, can understand when we read it and see you guys run the land and you guys should run the land. Not say you run the land, and when we come inside to get something from the County, say we don’t have the jurisdiction on the land. That’s one of my biggest questions and I need that to address it.

HERKES: Can I ask a question?

RAY: Sure.

HERKES: Thank you. Can I ask you, just for clarification, a question. So, you’re suggesting that we should write the Charter for all of the lands except for the lands that Hawaiian Homes and are ceded lands? Those would be exempt from the Charter.

JIM: No.

HERKES: And therefore, they wouldn’t get the services and they wouldn’t be covered by the County Charter.

JIM: Well, I think the -

HERKES: He was the one that was explaining.

JIM: I’m the one who wrote this memorandum, okay?

HERKES: Okay.

JIM: And I tried to express the attorney’s opinion about using laws from the kingdom time, and expressing coming into today in regards to the Charter. And one of them was the police powers, in other words, legislation powers in the County. That’s what the subject matter was about. Now the question you’re asking about which involved the Article 1-1, first of all, there’s a rule in law, and I think you’ll agree with me, that the law of the land is the rule. It is well established in our memorandum, opposition against the attorney, that the Admission Act on 5(b) which forbids the state - Which was incorporated into the public lands, it was limited regarding to use of those lands because they were provisions.

HERKES: I have a really simple mind. Can you make it easy and simple for me?

JIM: I need to get that.

HERKES: That’s the first time I understood what you guys were talking about.

JIM: The provisions state - I want to give an idea because you have your attorney here, so he can understand, and I’m going to give you simple language.

HERKES: We’re mandated by law to have an attorney here.

JIM: Your Charter is extending into 5(f). It’s extending into the public lands.

HERKES: I have no idea what 5(f) is. If you’ll just explain in simple terms to me.

JIM: Well, it’s Cayetano’s big deal. The simple deal is that you don’t have authority over those lands.

HERKES: Okay, the reason I’m asking is I am familiar with the Pueblos in New Mexico, and I do know that they have their own lands and they have their own governance in those lands, and the State of New Mexico does not interfere with them except for one big highway that goes through their lands. Now , I’m wondering if that’s what you’re asking.

JIM: No, we’re not asking that. If you heard Pat speak earlier, we have a tremendous conflict with this local government. In their Charter, they say they have authority over those lands of Hawaiian Home lands. Your Police Departments says they have authority over Hawaiian Home lands. They come in there and enforce Hawaiian Home lands, however, when we go inside for taxes, Mr. Wurdeman wrote an Opinion, you can check, in 1986. They don’t have authority over Hawaiian Home lands. They don’t have authority on the encumbrance upon Hawaiian Home lands in taxation when they try foreclosing. Now, that’s a conflict. Your Charter says they’re due, and they go out and enforce, and they get scared when we bring the Federal government inside says that you don’t have authority. This body Charter needs to understand there is a separate jurisdiction of encumbrance management of operating Hawaiian Home lands. Simple. This county, by the Charter, are not administrated over Hawaiian Home lands, Mr. Wurdeman. Plain and simple, they’re not. Why are this Charter put in their jurisdiction on those lands in the Charter? I mean, why are you doing it? That’s our complaint. That’s how simple it is. You don’t have the authority. You’re not an administrator of that Act. You have no authority, but you come and enforce it. That’s as simple as that. Your Charter allows it. Article 1-1. The law of the land. You control this whole island, Hawaiian Homes and everything. That’s what it means. You can’t do that.

HIGASHI: Mr. Jim.

JIM: Yes.

HIGASHI: If you were to propose an Amendment to the Charter, what would the words be?

JIM: That’s the sensible-est question I’ve heard yet. Thank you very much. I believe that, in our opinion, and I hate to use this word, but we have to educate the people, and that’s you. Clearly, that it’s somehow government is hiding their responsibility and the promise to the Hawaiian people, they’re separate. So, if that’s so, then you should clearly put it in your Charter, Article dash one, there’s a separation restrictions of land in this state, within the State of Hawaii, and incorporate it into the County, and that is Hawaiian Home lands, based on the Hawaii Constitution, Article 12. Nothing withstanding in the Hawaiian Constitution against the provision of Hawaiian Home lands - as simple as that. It says, one sentence, in other words, from Article 1 up to 11 and from 12 up, you have no standings over those. You made a promise. You made a compact. You don’t have no standings, but you come and enforce, take taxes, take money, divert the money, divert the water, use our water. Come over there and suppress us in our water. You’re the body here. You are the body that’s going to make this County to understand that you are restricted to go on Hawaiian Home lands. You are the bodies. Nobody else.

HIGASHI: Mr. Jim, I respect both of you, and your writing, and I know you did a lot of appeals in other cases. Maybe you can just draft some language for us so that we can understand it more clearly, and a final paragraph, or whatever, is going to be presented.

JIM: If this body requests our assistance, we are here to work with the people. We are not here to condemn them. We will sue them, if we have to do that, and which we are. I am filing a case right now dealing with (indiscernible). And I’ll tell you the truth, unless what this body can help, that County Council shouldn’t be paying for policemans that punish and cheat and violate. You shouldn’t. You’re taxpayers all shouldn’t be paying it. I have coming up this filing. They pay the Police Department millions of dollars. This body stops all that. Right in this room, stop all that. Stops all that taxpayers money paying for nothing. Right in this body.

HIGASHI: So if you will, if you can, between both of you, send something to us?

JIM: If the Chairman suggests that, we’ll be glad to put in a draft.

HIGASHI: At least we can look at it. Reduce to writing something, kind of compact, that expresses all your feelings. Maybe it can be presented to people. At least we can look at it and either vote aye or nay or whatever.

JIM: We can, but like I said, we have to address the body. You have an attorney here. We just can’t -

HIGASHI: Mr. Jim, he’ll advise us when we ask him for advice.

MARTIN: Point of clarification, if I may, Mr. Chair. The attorney works for us. We don’t work for him.

JIM: I know that but he has to know that. He wrote to us, okay?

MARTIN: He knows that, and up to this point, he’s done a fantastic job working for us.

HIGASHI: Based on a request by the Chairman, he wrote to you.

JIM: Yes.

HIGASHI: So, if you can submit something to us, we can look at it, Pat. I think that’s the best way. We’re going on and on and maybe over our heads, but I think if it is reduced to writing, what we can put in the Charter for people’s consideration.

JIM: What do you request? You want body of laws?

HERKES: One sentence.

JIM: One sentence?

HIGASHI: No, no, no.

HERKES: Maybe two.

HIGASHI: Let me finish. Something concise. If it is going to be put for an Amendment, what is it going to be? I mean, If you make it too long people are not going to understand.

HERKES: We’re not going to put it in.

JIM: Well, it’s simple. The Constitution clearly separates the restrictions of lands. No buts, no if, unless your attorney can say they’re all one.

YUEN: Let me just say something a little bit more, and I don’t want to get into a lengthy kind of summary of the whole history of the counties, and why the boundaries are set forth the way they are, or the Hawaiian Home lands and how jurisdiction works on the Hawaiian Home lands, but from what you’re saying here,

I think I want to emphasize one sentence in my letter, and perhaps I should have written more than one sentence on the subject in my letter. The sentence in my letter says something like how the county’s jurisdiction is exercised over different types of land within the county may differ depending on the status of the land. The way the County exercises it’s jurisdiction over the Hawaiian Home lands is different than it is over, to give an example, other state-owned property, over private property and it’s different than it is over Federal property. And I’ll return to that thought in just a second. Let me say, though, that there really is no doubt, from a legal point of view, that the County of Hawaii does encompass the whole island, and according to State law, must encompass the whole island, including the Hawaiian Homes lands. As a strictly practical matter, let me explain what the significance of that is. When somebody living on Hawaiian Homes land, in the middle of the night, hears somebody breaking into their house, and they pick up the phone and call 911, and connect to the Hawaii Police Department, the Police Department is expected, and has the duty of responding to that call, and going down there, and if they catch somebody burglarizing that house, they have the jurisdiction to make an arrest. They have that jurisdiction because the Hawaiian Homes lands are part of the County. If they were not part of the County, the Police Department does not have jurisdiction over it. To give another practical example, if we decided to exclude the Hawaiian Homes lands from the County, I do not see how people living on Hawaiian Homes lands would get to vote for County offices like the Mayor. People who live on the Island of Maui do not get to vote for our Mayor simply because they are not within the County. This is the practical significance of the Hawaiian Homes lands being within the County.

Now, let me return to that thought of how the jurisdiction is exercised over different parts of land is different. How the jurisdiction of the criminal law works in Hawaiian Homes land and how the jurisdiction of the Police and the Fire Department works in Hawaiian Homes land is exactly the same as other kinds of properties in Hawaii. The crimes are the same. The police make arrests the same. The County Highway Department maintains the roads, supposed to, anyway, maintain the roads, right? No?

JIM: Okay, I won’t answer that for you.

YUEN: So, that when we talk about a police jurisdiction, fire jurisdiction, it really is just about the same. When we get to zoning, it’s a tough area, and I said I’m not going to give an essay on zoning for a couple of reasons. One is that it is a tough area. What is the County’s zoning authority in Hawaiian Homes land? I’m not up on this, and I don’t know what the latest Opinion is. They may have said something like, in connection with the Wal-Mart re-zoning, we don’t have any zoning authority at all over Hawaiian Homes land. I don’t know if I agree with that or not. At any rate, that’s not something that can be decided on the level of this Charter. It’s a matter of what is the State law regarding zoning, and what is the State law regarding Hawaiian Homes Commission. The Charter does properly say that the Hawaiian Homes lands are within the County, and how that plays out as far as specific questions, and the tough area of zoning is another legal question that really is outside of this particular Charter. My own view on that, by the way, if I were to say something about it, is that the County zoning cannot frustrate the purposes of the Hawaiian Homes Act. I don’t know if I would go so far as to say that the County has absolutely no zoning authority. But, that’s it in a nutshell.

JIM: I’d like to reply. Can I?

RAY: Sure. So, in regard to services, especially public health and safety, that’s the response I’m interested in. Are you really suggesting that the County completely divorce itself in terms of public health and safety on Hawaiian Home lands?

JIM: Let me answer that, that public safety, what this gentleman just got through saying.

RAY: Okay.

JIM: I think you have to understand, and with respect to the attorneys, they talk a lot. Put the provisions in front of them because there’s a Constitutional provision of Hawaiian Homes. As far as the road maintaining, our position, you’re just janitors. You’re getting paid for do that, that jurisdiction. And that is on Section 2-20. Look at it. You’re janitors. That’s all you are. Now as far as the land is concerned, read Heely vs. OHA. It tells you clearly. Mr. Heely, the judge, ruled the State don’t own the land of Hawaiian Homes and 5(f) clearly tells that. The Supreme Court just rules really real good, the Cayetano, but they don’t. They’re stockholders, (Indiscernible) Read it very, very close. That’s who we are.

HERKES: Are you answering John’s question?

JIM: That’s his answer, and his answer is saying that you have authority. You don’t. But I’m going to tell you we can suggest things. And as far as the public and the services, those are just encroachment of Hawaiian Home Act.

HERKES: Thank you.

JIM: And number 2, if things will come up with those benefits that can be added, this discussion has been done 20 years ago, when I was young, with Hawaiian Homes. They were thinking about paying the County for doing it because of the maintenance of the roads within the Act. They did that, but they found that it’s better to encroach, and use our lands, and steal our money and water, more better. Today, that’s why we’re in lawsuits. That’s why we’re in the courts. You can stop it all because then you would force the Federal government, and the State to go into the funds of 2-20 and pay all those facilities. And I’ll tell you what else you’re doing wrong that you are coming with a monstrosity lawsuit, trust me, the encroachment. When the County have accepted those roads there, and come ‘what they call’ dedicated, that came out. There is million and millions of dollars involved, and it’s right on the agenda. And I’ll give you another one so you can understand, if you like to understand. We had a water pump down right around here, Panaewa. That water pump came back to us this last year. That gives you an idea what we’re doing. We’re coming in and reserve our rights to our land. Trust me. We will right so you can be out of trouble because we pay, you pay, we all pay. I own land. I still pay because why, we got Councilmans inside paying for people doing something wrong and we pay for it. That all needs to stop. Thank you very much, and if you decide you want to get a little mana’o, understanding, of one line of telling that, it clearly can be done. The laws support that. Cases support that. Cayetano’s case supports that. If you read it real carefully, it supports it. They didn’t address it, but they did support it. (indiscernible) did support it. So if we can assist you, we’d really like to see that the Charter - Hawaiian Homes lands, that it’s restricted, and if that’s so, then you can stop a lot of pilikia and stop us from fighting and go get money that’s owed to us. We’re in Federal Courts. We’re in suits. There’s about nine more going to be sued again. These suits. We don’t think they’re right. We’re going to find out in the Court. Thank you.

RAY: Roland.

KAHAWAIOLA’A: If you want, we’ll work on something.

HIGASHI: Okay, at least we’ll look at something. I mean, it’s kind of complicated issue.

KAHAWAIOLA’A: It is. It is and that’s why we only stuck to that one article within your Charter.

JIM: Nowhere else.

KAHAWAIOLA’A: Nowhere else. We didn’t go to any other portion of your Charter but that area. However, what I did object to was that there was a failure for even us to address it even at an earlier time. So, I thank you for the opportunity. It’s available for us to do something because, trust me, what disturbs me as a Native Hawaiian is Commissioner Herkes mentioned, she understands the Indian law. She understands the Pueblo. They happen to be an indian tribe. The Supreme Court clearly stated we’re not tribes.

JIM: We’re not tribe. We’re stockholders.

KAHAWAIOLA’A: They said we’re not tribes, so when people get an understanding of tribes, and try to integrate that to us, we’re not tribes. So that’s where I rest my case, as a Native Hawaiian. You have to understand Hawaiians and then you can turn back to tribes, but we’re not tribes, and we’re not here to go on the warpath. We just believe your language in the Charter just makes it so Hawaiians get nothing to do. We just got to do it. Reason is because the word is public safety. The example is if we call 911 at night - Trust me, I asked that same question seven years ago of the Chief of Police and Wurdeman. His answer was this. If you call, we’re going to come, just as anybody. It’s not the County Charter that’s protecting me. It’s the United States Constitution that’s protecting me. You see, that’s why he’s going to come. That’s what he told me. This Charter is not the reason. There’s ways to go get - Department of Hawaiian going to pay you guys to come, send your policemen over there. Pay you guys to maintain the road. Come pay for the fire protection on Hawaiian Home lands. That’s what they used to do, but it never come out of the Charter that says automatically we can do what we like on Hawaiian Home and you guys belong us. That’s the problem Hawaiians have. We have an identity and just refuse, right now, at this particular, the new millennium - I just hate to go until the year 2022 thinking that am I a Native Hawaiian, or am I a person, or I belong to the public. This Constitution, that you all swore to uphold, says this, and I will leave you with this message, obviously, in this state there’s three different classes of people because the Constitution says, right in the beginning, the state and it’s people will uphold the Hawaiian race, and obviously there’s three people.

JIM: And you’re not. Thank you.

KAHAWAIOLA’A: Thank you very much.

RAY: Okay, thank you. I think if we could get something in writing, and have that more part of the public record -

JIM: If you desire to do that, and your body, we’d be glad to. We’ll write something up and we can give our opinion.

RAY: Yes, I think that would be a more complete way to deal with this.

JIM: And you’ve got to understand, it’s just an opinion that we believe. And we can give you some of the background.

HIGASHI: Yes, I was going to say if you could just give us something short and then background.

JIM: Okay. Yes.

MARTIN: Point of clarification. You guys make mention to Article I, 1.1. It’s Article 1.2, isn’t it?

JIM: Well, actually it’s 1.1 and Article 1.2. That’s the Articles that gives the jurisdiction of us.

MARTIN: It’s 1.2

JIM: Article 1 and 2 that gives us jurisdiction and gives you land power over us.

KAHAWAIOLA’A: Yes, 1.2. Thank you very much.

RAY: Okay, thank you. That concludes our statements from the public. Moving along.

Minutes approval. We have two sets of minutes that were distributed.

HIGASHI: Short recess.

RAY: Okay, we’ll take a three minute recess.

RECESSED The Chairman called a recess at 6:00 p.m.

RECONVENED The meeting reconvened at 6:05 p.m.

RAY: I’d like to call the meeting back to order.

Minutes approval. Can I have a motion to approve the minutes from February 5th?

MARTIN: So moved.

HERKES: Second.

RAY: All in favor?

COMMISSIONERS: Aye.

RAY: Motion for the minutes for February 9th.

MARTIN: So moved.

HERKES: Second.

RAY: Discussion? All in favor?

COMMISSIONERS: Aye.

RAY: Financial Status Report. Out of last year’s encumbered funds, we show a balance of $13,949, and out of this year’s encumbered funds, a balance of $78,718.10. What’s the date on this?

HENRY: January 31st.

RAY: So, this is as of January 31st. So, we’re relatively flush. We have to figure out how to spend some money.

MARTIN: Chris, you’ve got to up your fees a bit, I guess.

RAY: This doesn’t include his wonderful packet, I’m sure.

Communications. There are a number of communications in your packet, testimony we’ve received. Most of the folks I’ve heard from verbally plan on coming to one of the public hearings, including the people I’ve talked to in the Administration, so since they haven’t passed anything on in writing, I’ll just wait and assume they’ll come in.

HERKES: I got a verbal comment about when is it going to be on the web. Why are you having public hearings when it isn’t out.

HENRY: It’s on the web. It’s been on the web for two weeks.

HERKES: In-depth?

HENRY: No, the in-depth I just got day before yesterday.

HERKES: So, we haven’t really approved the in-depth stuff yet, so that’s what I said, we need to talk about what’s in here. And while I’m on that, Chris, thank you so much. It’s beautiful. It’s so neat.

IRVINE: Yes, I second that.

MARTIN: As I mentioned earlier, a fantastic job.

RAY: Unfinished Business. What I’d like to do is to go through all 19 Amendments, hopefully pretty briefly, and for all of us to make sure we’re, as much as possible, on the same page so that we can ask questions among ourselves and to our legal counsel, if need be, so that we’re as well prepared as possible for the public hearings which start Saturday.

So, starting at the top, Non-partisan elections. Does anyone have any questions in regard to the explanation and the materials we have, or anything else?

MARTIN: Was it ever finalized, Chris, that if somebody were to come out with 50 + 1, that that’s a done deal on the first go round?

HERKES: That’s what it says.

MARTIN: Yes, but that was only for two people running, right? What if three or more? That would be impossible. There has to be a run-off.

YUEN: No, for the Council district elections, the single member district elections, no matter how many you have running, if one person gets the 50% + 1 in the first election, then they’re elected outright.

MARTIN: Okay.

YUEN: Now, if you only have two running, it’s guaranteed that one person will be elected outright unless they absolutely tie, the way it was voted on by the Commission the first go round.

MARTIN: Okay. Now, the 50 + 1 number is based on what?

YUEN: It’s based on people actually casting valid votes for candidates. It does not include blank and spoiled ballots. Spoiled ballot would be like an over-vote, where, say it’s a Council district election, you only get to vote for one and you vote for two people. They don’t count that. It’s an over-vote and you would not include that in determining what is the 50%.

MARTIN: So, only clean ballots cast in that particular district.

YUEN: That’s right.

HERKES: Says excluding blank and spoiled.

HIGASHI: Only votes counted.

MARTIN: Right.

HERKES: It excludes spoiled too.

MARTIN: Correct. Thank you, Roland.

YUEN Right.

RAY: Any more question or comments in regard to the non-partisan elections? I encourage everybody to take notes and make sure we all understand these, and help me, remind me, to bring out these points. As much as we can bring out at the public hearings, I think, will be real helpful.

HERKES: You don’t want us to look dumb?

RAY: I just want to answer as many questions as we can up front. And by the way, the order of these, Chris wanted me to make it real clear, and make it clear at the public hearings, that this is just preliminary listing, so this is not necessarily how things will appear, in this order, or whatever.

Okay, so the Second - Council to include the at-large seats. So, does everybody understand this one-time exception? I got some phone calls on that so I’ve explained it. Basically, the 4 two-year terms kicked in in 1996, so should this pass, it would take effect in 2002, and what we’re suggesting is that there would be a one-time exception that anybody that were in office then, and all the present people will have served 6 years by then on their term limits, anyone would be allowed to run for an at-large seat. So, if they did win an at-large seat, they would be able to be in office for 10 years vs. 8.

MARTIN: Or possibly longer, because some people are still in office that was preceding that date.

RAY: Right, yes, like Mr. Arakaki, who has already been in office - But the term limit didn’t start until ‘96 so he could have been in office 20 years total.

HERKES: I’d like us not to get distracted by that, and stay on the issue of representation. The issue of how long term limits and people can run, and can they run again, that will disappear in about two elections.

RAY: Still, it’s a very important issue to people. I got more phone calls in regard to that and specific Councilmen than anything else, so people do focus on that.

MARTIN: The term limit is stuck, and even me, I got a few calls.

RAY: So, I think we need to be able to understand that.

HIGASHI: Once you explain it to them, then they felt more comfortable?

RAY: I’m not sure, but at least they understood it. I don’t think it’s anything so outrageous.

HERKES: It’s not a deal breaker.

RAY: Hopefully it is, but -

HERKES: You’d just as soon it would.

MARTIN: John, with that discussion, would it be possible, if it were to be fed back to us, and Chris, I guess it’s going to direct towards you to answer this question, to remove it and exclude them from running?

RAY: Sure.

MARTIN: In other words, say your term limit is 8 years and we’re not going to extend it.

HERKES: I’d love it.

RAY: Of course.

YUEN: Yes. They can still run for two years in another district.

MARTIN: But we wouldn’t be impeding on their rights, then?

YUEN: No, you’d not be.

IRVINE: You don’t think they’d get a lawyer and come and try to sue? Is that what Roland asked before?

YUEN: I think this is the same question Roland asked me.

IRVINE: Yes, okay.

YUEN: And basically I said anybody can go to a lawyer, and they would have something they could say about it but my judgment is that they would have a pretty weak case.

HIGASHI: Clearly they could take hiatus for two years and then run for office again.

YUEN: Right.

MARTIN: Right now they can do that, I believe, everyone.

HERKES: There’s all kinds of things they can do, and we’re getting confused and distracted by that issue.

HIGASHI: In terms of public relations on their part, that would a better thing to do.

RAY: I just want to be prepared. You know people dwell on the small things, so I just want to be as well prepared to answer them as possible.

MARTIN: I guess what I’m saying is if we do get the feedback that you’re expecting, and you’ve gotten some phone calls, I, too, have received a few, on the fact of term limit, then it’s an option that we could possibly say, well, is it acceptable? Would it then make it more palatable.

RAY: Right.

HERKES: It would, too.

MARTIN: Isn’t that our job?

HERKES: Unfortunately.

RAY: Yes. Okay, 3. Strengthen the authority of County Managing Director. Everybody take a look at that. Chris, in Section 6-1.3, under Powers, Duties and Functions, (c) and (d); aren’t those new?

YUEN: I thought we had taken this out of the County of Maui powers.

RAY: We did. Shouldn’t it be underlined in ours?

YUEN: No, it’s all replaced. I wrote at the top that -

RAY: I just thought, because the other ones were already there. I guess that’s what I’m trying to differentiate, because those were ones we pulled out of County of Maui. I think everything else is in our Charter.

YUEN: For some of these, where we were really practically redoing the sections, and in this one in particular, rather than doing the underlining, bracketing business, I wrote at the top ‘Existing Art. VI, Chap. 1 would be replaced as follows.’ I could run this again with the underlining, bracketing, but I thought it a little easier to do it that way.

RAY: Let me finish. My thought is just when we’re explaining this, I thought it would be good to point out the changes, the additions, and so under the description of the Managing Director, ‘confirmed by the council’ is something that is significantly different. And then, also, the qualifications, this ‘professional experience in the art and science of management as required of this office’, that’s new language, and are (c) and (d). Just going through it a couple of nights ago, I just checked those off as things that I think would be good to point out when we’re explaining this.

IRVINE: I think you’re right. Whether they are underlined or not, I don’t know if that’s necessary, but we really should let people know what’s changing there because otherwise they’re going to think we’re rewriting the whole chapter because they won’t have the Charter with them.

RAY: Roland.

HIGASHI: When we talked about this arts and science, I don’t believe we ever enacted that part unless you came to another meeting where I wasn’t there.

RAY: I was going to ask Chris about that. I’m not clear. This is under 6-1.2 Managing Director, the last clause in there. It says ‘and/or professional -

HERKES: ‘The art and science of management as required of the office’. I have it written down.

RAY: I had a question mark on that.

HIGASHI: We originally had it as a thing. We deleted it.

YUEN: What I’ll do is I’ll go back because I thought that was at the Waimea meeting where these things were adopted.

HIGASHI: I think I made the motion.

HERKES: But I like it, and I’m unhappy there’s not more qualifications.

YUEN: I’ll double check.

RAY: What I threw out in the draft was just something I picked out of the Lexington, Kentucky Charter. I wasn’t really wed to it. It was just an example of something, so I remember that there was an objection to that, and I didn’t think we had approved it, actually.

HIGASHI: We didn’t.

RAY: And it was actually a little bit different than from what’s in here as well.

HERKES: But we can have members of the public suggest changes, can’t we?

HIGASHI: Oh, yes, definitely. But what we present, we, kind of, approved in principle.

RAY: So, we need to work on that.

HERKES: I have a whole list here instead of just ‘the art and science of government’.

RAY: So, are there other comments or questions on number 3? And you know, this will be fairly informal at the public hearing, I mean. We want clearly to give the impression that this is very much a work in progress, so we want to feel comfortable discussing things in the public hearings, as we go along, and having other folks do that. Along that line, I was going to go through things, before taking public testimony - I asked Chris about this - I’d like to run through them first so then people have a chance to comment on -

HERKES: What will the public have available to them?

RAY: They’ve just got the summaries.

HERKES: They’ve got the summaries. They won’t have this?

RAY: No.

HENRY: If they called and requested it, and it said in the public notices as of today in the paper, gave my phone number and said if you want more information on the amendments, then call me.

HERKES: And you’ll mail them this?

HENRY: Yes.

RAY: The 280 and so we sent out were just the 3-page summary.

HERKES: I just have this person that wants a photocopy.

HENRY: All County Departments now have the detailed one as of today.

HERKES: Okay.

IRVINE: Are we, John, though, going to have some copies at these public hearings? I bet we don’t have that many people coming out.

RAY: Yes.

HENRY: I have 50 in my possession right now, and have requested another 200.

MARTIN: You might want to hold off on that 200 if Chris is going to start underlining -

HENRY: Right. The other thing is if we want to put this on website, you need to tell me when it’s at the place that you feel comfortable putting it on, and then I’ll need the diskette or to retype it.

RAY: Okay.

HERKES: I would feel comfortable putting it on now. We’re going to take it to public hearing on Saturday. I mean, what’s the difference?

IRVINE: I agree.

RAY: Chris, what do you think?

YUEN: Actually, I think maybe we should decide that after we go through it right now, and we see how close we are, because there are a few things in here, and I’ve tried to highlight them at the top, where the Commission has not actually voted on it, and usually it involved a fairly fine point, but still I tried to point out where things had been changed. And so, that’s why I’m a little cautious about putting this out, as being official. To be honest with you, I think the summary really does state the important points pretty well, and cover it, and there are people who want to see exactly what’s, and I don’t blame them, and I agree with that, and certainly in the end, we’ve got to have something. But at this point, let’s go through it, and without necessarily this being the exact language, if there are things that people do have concerns about in the language being what the Commission wants to do, then let’s not put it out yet. Maybe we’d not put out some of them if that is a problem.

RAY: Okay, let’s keep going. 4. The Fire Commission.

YUEN: Maybe it’d be helpful if I pointed out a couple of things on these as we go through.

RAY: Okay.

YUEN: The Fire Commission, what I have here, follows very closely Gary’s draft which the Commission voted on and there was all that language in there. What is different here from that draft, and was done because there was a discussion about doing this by the Commission, was change the language as far as the removal of the Chief, and the net effect of this change in language is it makes it easier to remove the Fire Chief than the language in the Honolulu Charter. Instead of saying a statement of charges, it says a ‘statement of reasons’ and then it says ‘the fire chief must be allowed to respond’ actually before they vote to remove the chief, and the difference in the Honolulu Charter, it says that opportunity for a hearing before they remove, and I think that creates a bigger procedure, a more difficult procedure. And I thought the sense of the Commission was to try to streamline it a little bit at the last meeting, but the Commission has not actually voted on this particular language that I have in here on removing the chief.

The second thing that I added, and I changed a little bit from Gary’s draft, was the transition, on what happens between now and then. And it’s to make it clear, first of all, and I think this was just something that was understood in the previous draft, was that this takes effect when there’s a changeover in the composition of the County government in December. So, in other words, the Mayor that comes in appoints the new Fire Commission in December. I think that was understood that it wouldn’t be the Mayor in the last month of the term appointing the Fire Commission. The chief who is in office immediately before the turnover, would remain as the chief until the Fire Commission appointed a new chief.

HIGASHI: And confirmed by the Council or appointment by the Fire Commission, does he become interim or acting chief?

YUEN: Under the procedure on Gary’s draft, and in the Honolulu Charter, there is no confirmation of the Fire Chief by the Council. The Fire Chief is simply appointed by the Fire Commission, so that’s it. Once the Fire Commission appoints the chief - Are you talking about the interim Fire Chief?

HIGASHI: Without looking at this in detail, is there a confirmation of the Fire Chief?

YUEN: Today there is, yes.

HIGASHI: Under the proposal?

YUEN: No, there would not be. Nor did I include confirmation of the interim Fire Chief because it should be a fairly short time that you have an interim Fire Chief. For example, if the new Mayor, the old Fire Chief is serving as interim, then, say, one week later decides to resign, the new Mayor gets to appoint an interim Fire Chief. But that’s only going to be until the new Fire Commission appoints the first Fire Chief. Under the current Charter, the Mayor appoints the Fire Chief and there’s Council confirmation, and under the Honolulu - am I wrong on the Council confirmation? I’m pretty sure that they have a Council - Yes, there’s Council, but under the Honolulu Charter and the proposal that you voted on, you can change it, but the way it worked there is no Council confirmation. It’s just done by the Commission.

RAY: Yes, right.

HIGASHI: I can understand that. If a Commission is going to select - the Liquor Commission, they don’t get confirmed -

HERKES: I was just going to say none of the other Commission appointments are approved by the Council.

YOSHIYAMA: You’ve got the Civil Service. It’s say confirmation by council, so we’ve got both.

HERKES: You’re kidding.

IRVINE: Where?

YOSHIYAMA: I just read it now.

RAY: There are other Commissions that don’t appoint Department Heads that are confirmed by the Council.

HERKES: That don’t appoint Department Heads?

RAY: Right, like Planning Commission. Planning Commission doesn’t appoint the Planning Director. That’s appointed by the Mayor and confirmed by the Council.

HIGASHI: Okay, we need to kind of think about what we want to do there for consistency down the road.

YUEN: No, none of the directors that are appointed by Commissions are confirmed by the Council.

HERKES: Gary said Civil Service.

YUEN: The Commissioners are confirmed by the Council.

YOSHIYAMA: Okay, sorry.

YUEN: The Commissioners then appoint the director. That’s Liquor, Civil Service and Police right now.

HIGASHI: I have one question. In the creation of any department, do they have to promulgate rules and regulations for their operations?

YUEN: The Fire Commission will have to promulgate rules of procedure, just like we did, for this Commission, but it’s not that critical because they’re not rules that effect the general public. They still have to go through rule making and the like, but your really difficult rules are rules like Planning Commission rules where they govern what kind of permits you can get, as a member of the public to come in. The Fire Commission will have rules that are just going to be pretty much proforma types of rules. They’ll have to have a rule on when is their regular meeting, where do they meet, where do you send mail, what’s a quorum, but that’s almost an automatic kind of thing. So I don’t think that would seriously delay them getting together and -

HIGASHI: I’m going to the point if there are rules, we should allow the Fire Commission to appoint it’s chief and then promulgate its rules, if it gets in the way. Do they need rules before they can have the authority to appoint a chief? The Charter gives them the authority already.

HERKES: It says in the thing, ‘adopt rules necessary for the conduct of its business’, so if its business is appointing the chief, it needs rules that are necessary for the conduct of that business.

HIGASHI: Then my next step is maybe, part of our Charter, if it passes, we should have draft rules for them.

YUEN: Yes, let me think about that. What you’re getting at is a really good point, is that you don’t want them waiting a couple of months, approving the rules, when the only thing the rules are going to say is, well, we meet on Thursday. Let me try to figure out a way to handle that.

RAY: Anything else on 4. Fire Commission? 5. Department of Environmental Services.

YUEN: This is, kind of, just a simple - I didn’t go to any great detail on this but the Commission has not voted on this before, or seen it before I wrote it up and sent it out. Just so we’re clear on that.

HIGASHI: I have one question. If it’s an advisory, does it need to be confirmed by the Council?

YUEN: You wouldn’t have to have it confirmed by the Council. It’s up to the Charter Commission on how they want to handle that.

HERKES: Are all the other Department Heads confirmed by the Council?

HIGASHI: No, not Department Heads. The Commission, because it’s advisory in nature.

YUEN: Generally, the Charter has a catchall provision that says that members of advisory commissions do not need to be confirmed by the Council. I’m not sure why I put in confirmed by the Council. I don’t think the Commission actually voted on that, and so whichever way you want to have it, it’s really up to the Commission on that.

IRVINE: It depends upon how much weight we’re giving to their advice, I would say. If you want the Council to buy into this, then it would be nice for them to confirm these people, having served on certain advisory commissions, that I would never serve on again, when one person has the ability to just appoint anybody they want.

HIGASHI: I would just look at it in terms of being consistent, Chris. I know the advisory boards are not confirmed by the Council.

YUEN: Yes, the way I’ve written it up, it’s not consistent with the rest of the Charter but this would override it because it specifically says that it is confirmed by the Council. But, again, it’s up to you folks whether you want to have it confirmed or not.

HIGASHI: Because they’re not policy makers, I would say that they need not be confirmed by the Council.

RAY: The other thing is you could take out ‘advisory’.

IRVINE: We haven’t specified that they have any duties like zoning permits at this time, but I think we were hoping that this advice would have some weight here, rather than, and I don’t want to name specific advisory boards.

HERKES: Try landfills. I’ve been on three of them.

IRVINE: They meet and nothing happens.

HERKES: No, things happen, but maybe not what you recommend.

IRVINE: Yes, nobody necessarily pays any attention on the County level, and I had the feeling that if the Council were involved, in sort of buying into helping appoint these people, that they would then expect reports.

RAY: What about, and I’m just throwing this out for discussion, eliminating ‘advisory’?

HIGASHI: Then they would be policy?

RAY: In an Environmental Services Commission.

IRVINE: Yes.

RAY: Just take out the word ‘advisory’.

HERKES: That’s an interesting change. I’m not against it.

IRVINE: Yes, but down below, it does say they advise.

HIGASHI: Just let me ask this question then. If they’re not advisory, are they policy makers? Are they equivalent to a Board of Water Supply Commission?

HERKES: No, Planning Commission.

HIGASHI: Planning Commission is only to move along zoning issues. They’re not policy makers for the department.

HERKES: Gee, they’d be surprised to hear that.

HIGASHI: So if you take away ‘advisory’ then they’re not advisory, what authority do they have?

IRVINE: Down below, again, it says that they shall advise, so they really are advisory, but we did talk about the fact that they want somebody to set sewer rates, and whether this would be a function that would be given to them at some point in time, I don’t know. If we leave advisory out of above -

HERKES: Solid waste, wastewater, recycling programs.

IRVINE: I think it might be nice to leave ‘advisory’ off.

HIGASHI: No, no, Marni, I think the programs are defined but when we’re talking about the members who are serving, they’re advisory, and that’s all they are. They’re going to make suggestions and then they’re going to have money, they’re going to have to go to the Council to implement their programs.

HERKES: Let me throw something out. Do we need a Commission? Why don’t we just have a department, and if a Commission is necessary, they can put it in the Charter next year, or the year after, once they get the department set up.

IRVINE: That’s a little like throwing the baby out with the bath water. I think there has been a Commission presently, the Recycle Hawaii and the County, I can’t think of the exact name of the Commission that’s been meeting that John Santangelo was sitting on.

HERKES: It’s not a Commission.

IRVINE: No, it’s an advisory committee of some sort.

RAY: It’s a committee, yes.

IRVINE: Yes, you’re right. It wasn’t appointed in any manner.

RAY: I think how we got here is because originally we were focused more on a Commission than a department.

HERKES: Yes, and we ended up with a department. Now I’m wondering if we need the Commission. You’re right. That’s exactly how we got here.

IRVINE: Let’s take it out to the public and then look at it again.

HIGASHI: The one other correction is the nine members representative of the nine districts that we have, or do we have nine members in there?

YUEN: This goes back to the issue the Commission has not voted on yet, of what to do with the other Commissions that have one member from each Council district, if you go from nine to six.

RAY: I thought we had agreed that we were going to leave it the same and you just come up with some language that would -

MARTIN: I thought it was represented in the first passage that we read earlier.

RAY: That would basically figure out the way to leave it the same. It’s just way too controversial to change it.

HIGASHI: Maybe in a separate item in the Charter, where it refers to nine Commissioners, we can spell out present nine districts, and I think you brought it up, that if reapportionment comes around and it’s not proportionate, the Reapportionment Commission then will be engaged in re-appropriating the nine districts, something like that.

RAY: No, my recollection is that we talked about some language that would describe the nine Council districts as they presently exist, something like that, because if this were to pass, there would no longer be the nine Council districts, and just get around it that way.

YUEN: That’s an option. We can say that if it passes and we don’t have nine Council districts anymore, that we will keep dividing up some of the Commissions using the Council districts as they existed in the year 2000. That is an option, but I didn’t think that was voted on.

MARTIN: I don’t think it was either.

YUEN: And so, if you want to vote on it, then we can do that. But I thought it had been left as an open issue.

MARTIN: It’s all contingent if the 6-3 were to pass. If it’s not, it’s a redundant issue, isn’t it?

YUEN: Yes.

RAY: Whether we vote on it or not, I thought there was consensus that that’s where we were headed with that.

IRVINE: Yes, if we’re doing nine districts now then possibly continue.

RAY: Okay. So if we’re going to have an Environmental Services Commission, and we’re going to have the nine districts still carry over, Roland, were you asking a question, do we want this Commission to be nine members?

HIGASHI: Just to be consistent, we want it with the others.

RAY: I like that, especially when you’re dealing with solid waste. I think the more diverse geographic -

HIGASHI: Maybe you put five in North and South Kohala because that’s where it is.

HERKES: Department of Health tells you where to put them. You don’t have a choice. You can meet all you want, but they say here, here, and here.

HIGASHI: Okay, but I think the intent was to keep the nine Council districts.

RAY: So, the main thing we need to work out is whether it’s advisory or not, and the Council confirmation. So, we’ll just leave that open for now?

IRVINE: John, we could leave ‘advisory’ out in the first sentence, but down below it does say ‘The Environmental Services Commission shall advise’, and just leave it that way. Leave it a little bit open to let the -

RAY: That’s what would make sense to me, then you wouldn’t have that top trigger.

IRVINE: Right.

RAY: My thought was we were proposing, you’re right, Roland, an advisory Commission. But so that we don’t red flag, we could take that top -

HERKES: Take ‘advisory’ out. And then ‘confirmed by the Council’ out, also?

RAY: Yes.

HERKES: Yes.

HIGASHI: What we also might consider in Environmental Services is to have nine Commissioners and kind of detail some kind of professional background, if we want to, or is it want to be a lay body?

IRVINE: Lay body, please.

HERKES: I don’t. I want a professional body, but obviously, we’re going to butt heads here.

HIGASHI: Yes, I mean that’s kind of a different school of thought, yeah? You can describe it to various educational, or vocational -

IRVINE: We’ve had a lot of engineers working on this for quite a while in our County and nothing gets done, so I think -

HERKES: We’ve had a lot of volunteers too, and nothing’s been done either.

IRVINE: That’s right, but they are advisory. That’s why I think we ought to give them a little more -

HERKES: More rope?

HIGASHI: I mean that’s another food for thought in terms of creating this new department. In the State Commissions, they kind of spell out certain people should be from a profession, some people from the public sector. So, who was the brain child of this one?

HERKES: Sue.

RAY: Anything else for now on 5.?

MARTIN: So, how are we going to present it on Saturday?

RAY: That we’re not entirely resolved on all this.

IRVINE: I think the public will be very happy to see that we haven’t got everything settled.

HERKES: That’s why I said I thought it was a mistake not to just put it on the web and let them look at it. Say ‘draft’ across each page.

RAY: Moving on, 6. and 10. Planning Department Functions/Planning Commission Powers. Chris, can you explain the subdivision section?

YUEN: Right now, the Charter gives the Planning Director certain powers with respect to subdivisions, and there’s been talk about re-organizing this so that it would fall under the Department of Public Works, or possibly be shared with the Department of Public Works. In any event, there would have to be an ordinance passed to do this because beside the Charter saying the Planning Director approves the subdivisions, the Subdivision Code says the same thing, naturally, because that’s what the Charter says. So, in discussions with the Planning Director, the best, or the cleanest, way of doing this was simply to make it clear in the Charter that the Council, by passing an Ordinance, could move the functions around, and then they’ll work with drafting an Ordinance, but take away the obstacle in the Charter to reassigning the powers and duties, as far as subdivisions.

HERKES: So you not only took away the obstacle, you actually made it proactive that they could do that.

RAY: He just said ‘may’.

YUEN: Yes, they may do that.

RAY: This question’s been posed to me. How come we took this approach in regard to the Administration’s suggestion about creating a Division of Permitting vs. such a stronger approach in regard to creating a Department of Environmental Services? In other words, with the one, we decided that this is something we felt the Administration and the Council should deal with if they want to, this Division of Permitting. Whereas, in regard to the Department of Environmental Services, without even getting a suggestion from the Administration, we’ve decided to create a new department.

HERKES: Do you want a suggestion on an answer for that?

RAY: I’m just passing on the comment.

HERKES: What I would say is we are becoming more urbanized. The Department of Permitting, we are beginning to have our land zoned, beginning to be able to look at permitting as a movable object but not such a loose object. And as we become more populated, Environmental Services take on a huge importance in our structure.

RAY: Okay, but to get back to the permitting. So if we feel strongly about the permitting, why don’t we go ahead and create a Division of Permitting?

IRVINE: Because the discussion we had, as I recall, was we were really going that way and then it just appeared that you really can get a permit quite quickly; that Public Works and Planning do work together quite frequently now, and we were just going to state it that that is the mandate. That was my recollection.

HIGASHI: I think my feeling was that creating a Division or Bureau is allowed administratively, and if Administration thinks that’s a priority, they’re allowed to do it. I think this Commission felt a strong need for environmental concerns be addressed, and therefore, created this new department. That’s where we all came from.

RAY: The reason I’m bringing this up is the press has already targeted cost of government, and in West Hawaii there was an article that appeared that we’re creating two new departments. The other department is the Department of Managing Director. They use that as a new department. The reason I’m bringing this up is so we discuss it and that’s why we’re doing all this, so that we’re prepared to take this out.

IRVINE: We did get some testimony, too, from Jiro Sumada about this sort of thing when we first started listening to what he had to say, whether we were putting water and wastewater, and this and that, together, and what he thought would be appropriate.

HERKES: Now, don’t go on because I want to ask, and this is a really important question to me, in Chapter 13-3, it’s the garbage chapter where we have added, through the years, definitions and qualifications for directors and departments. That is not included in this Planning Director, 5-4.2. I feel very strongly that we need to have all of the Planning Director qualifications and all of the Deputy Finance Director, and the Finance Director’s and the Managing Director’s qualifications that were passed in past Charters, put under their headings, so that we don’t have a garbage section anymore.

IRVINE: I was going to bring up the same thing, but I was going to do it when we got to 11. under Qualifications.

HERKES: Too late.

IRVINE: No, we had said this page 27, 28; it’s Section 13-3, has all these various departments’ qualifications that’s in the Charter, that those qualifications should be in their departments, and so we are taking some out and putting them in. And I agree with Marni entirely, that we ought to have the Deputy Planning Director, or whatever, moved along with -

HERKES: There’s just about one or two sentences for each of them, but it needs to be -

IRVINE: In the department.

HIGASHI: In the right place.

HERKES: Yes.

YOSHIYAMA: That’s number 15.

IRVINE: I had it under number 11. Qualification of Heads of Departments, Public Works and Water Supply. That’s the thing. Everything’s in that 13 but some we could combine.

HIGASHI: This was put in the last Charter.

HERKES: It’s been put into the last ten years, and it was easy to do that, make a garbage chapter, but I think we now need to get it out into the Charter.

RAY: Looking at Section 15, Planning Department, isn’t that what you’ve done, Chris?

HERKES: Oh, Department Head Qualifications. So, why do we have ‘Planning Director shall be appointed and confirmed and removed by the Mayor’? Oh, okay, so the Planning Director’s in two places.

YUEN: No, you folks had passed a slight change to the qualifications of the Planning Director, so that gives us an opportunity to yank it back out of 13-3, and put it back into the Planning Department section, assuming that the voters pass it, and which is what you want. Most of the ones that are in 13-3, we can do the same thing with, and they’re in 15. We would only be left with, I think, the Finance Director.

HERKES: And Deputy Finance Director?

IRVINE: Yes, that’s true.

HERKES: Can we fudge a little?

YUEN: To accomplish what you want to do, we could add the Finance Director to item number 15 on the summary list. You wouldn’t have to actually change any of the qualifications, but just move it, and that would do it.

IRVINE: Let’s do that. I mean, that is such a bad deal.

MARTIN: So, is a motion in order for that, or is it just housekeeping?

HERKES: I think it’s just housekeeping because it’s already in there.

IRVINE: We’re not changing anything. We’re just moving.

YUEN: Why don’t you have a motion to do that, and then we’ll just do it.

RAY: Okay. Can I have a motion?

HERKES: I make a motion to move.

RAY: To move the Department Head qualifications to the appropriate sections. Do I have a second?

HIGASHI: Second.

RAY: All in favor?

COMMISSIONERS: Aye.

RAY: Chris, in the final preparation of the whole document of changes, would you try to make it not so complicated so people don’t get too confused? I mean, we’re moving this to here but make it like a simple thing.

YUEN: Yes. There are going to be two parts to this when we finally do it, and I will work with you folks in making the ballot question. That’s what people are going to vote on, and we will try to do those as simply as possible. The other part will be what it gets changed to if it passes, and you have to do that. And again, it will be like what you have here with some changes perhaps. We’ll fine tune it but we’ll, in the end, take a vote on exactly what the language will be changed to.

IRVINE: But, Chris, you think at this time, this motion we just made, it could be thrown in with number 15, here, so we wouldn’t necessarily have another Charter Amendment to put out to people?

YUEN: Right. We could stick it all in without having another one.

RAY: Anything else on 6 and 10?

YUEN: Let me comment on just one thing. On this ‘Adopt rules and regulations having force and effect of law’, the Planning Director wants us just to say ‘pursuant to zoning ordinance’ and not the subdivision ordinance because the Planning Commission has not, in the past, passed rules and regulations on the subdivision ordinance. I don’t think we need to get into that anymore right now, but I thought I’d just mention that.

RAY: So you anticipate that we’d take that out?

YUEN: Quite possibly we would, but let’s leave it for now and I just wanted to mention that. We might come back to it later.

HIGASHI: It is critical if they don’t pass rules and regulations and we have it in, though. That would force them to promulgate rules and regulations for subdivisions.

YUEN: No, the Planning Commission doesn’t have a role in subdivisions, so that’s why. The Planning Commission does not have. The Planning Director passes the subdivision, not the Commission.

HIGASHI: So, therefore it should not be in at all.

YUEN: Yes, I think that is correct, that it should be out.

MARTIN: Out of the Planning Commission?

YUEN: Yes, the subdivision rules and regs.

MARTIN: Who made the suggestion to take that out?

YUEN: Planning Director.

RAY: Number 7. Legislative Research Office.

HERKES: Has Connie seen this yet?

RAY: Yes. They’re disappointed. They had hoped we were going to come up with some scenario to give the office more independence, but I just don’t see how, with it being part of the County Council Office, and appointed.

HERKES: God, let’s not create another department.

RAY: Yes, it’s not an auditing department, and it doesn’t warrant that type of independence. I share her concerns but I don’t have any suggestions on how to do that.

IRVINE: Somehow I feel that we failed, a little bit, to address that internal audit thing which, I know, Finance was wanting us to do, although they didn’t state it very solidly. But it is something that our independent auditors tell the County we need every year. But I agree with you, we’ve done our best with this.

RAY: Okay.

YUEN: Let me bring up one fine point with this. The way I’ve written this up, the Legislative Auditor is abolished, and if you’ll notice this, it says that ‘the Council may establish a Legislative Research Office’. So what the point of this is that, and as with everything, the final decision is yours, but the thought here is that if you left the Charter about the Legislative Auditor being the same, Council could say no, we’d rather have it the way we used to have it, and we just keep the Legislative Auditor’s Office, and we never implement the Legislative Research Office. That would be a possibility. The way this has been written up here, there is no such thing as a Legislative Auditor anymore, and if the Council wants to have a Legislative Research Office, then they have to implement it according to how it’s written in the Charter.

HERKES: Good, good. I think that’s a step in the right direction. I think that’s a huge step. Thank you.

HIGASHI: So, when we form the ballot question, it is to delete that office and to implement the Legislative Research Office?

YUEN: Right. It would say something like replace the current Legislative Auditor with a Legislative Research Office.

RAY: So why wouldn’t you say ‘shall’?

YUEN: Well, if they don’t want to have a Legislative Research Office, then they don’t have to implement it.

HERKES: And also, ‘may’ makes them, at least, think about what they want. They might set some goals, and might have some outcomes.

RAY: The last part of this is that you eliminate the Legislative Auditor. So the big difference there is that the head of this new office is appointed by a majority of the entire membership of the Council vs. appointed by the County Clerk, but that’s, in effect, the way it is now since the majority picks the County Clerk. It effectively works the same way.

HIGASHI: Just one other question. In terms of creating the department, right now the Director, or Connie, makes the same amount as the County Clerk. Do we have to describe a compensation level, or how do we work that part?

YUEN: No, I think the Council just puts it in the position classification plan, and they could set it at a higher or a lower level if they wanted to. It would be by ordinance. I don’t think that you want to do that in the Charter. It really should be up to them, although I’m trying to think now if this is a Salary Commission -

HIGASHI: In the Charter, it’s spelled out as far as they have some code in terms of what they pay.

YUEN: Actually, I think this becomes a Salary Commission pay scale, if they pass the Salary Commission Amendment. Otherwise, it’s a Council pay plan issue.

HERKES: That’s interesting. The Legislative Research Director is a Salary Commission?

HIGASHI: I think it’s set by the Salary Commission, but right now, it’s the same as the County Clerk.

IRVINE: They do set it. I think it was just last meeting, when you weren’t here. Is that right, Roland? That we had a lot of discussion about these salaries and where they set them, and tried to make it clear that we didn’t expect every Department Head to get paid the same amount just because they were a Department Head, because there were varying qualifications. And I think everybody agreed that they should be free to set those salaries differently.

RAY: Moving on. Holdover Boards and Commissions. That’s pretty simple. It’s going from 30 to 90 days.

IRVINE: I was wondering on that, John, a couple of people testified to us, the Board of Appeals maybe, and maybe somebody else, something about clarifying that Boards and Commission members should start on January 1st. Was that something that we could toss out along with that? I have it here. From the Board of Appeals, and I think the Planning Commission also said the same thing to us. ‘Any vacancy occurring in any Board or Commission shall be filled for the unexpired term plus a term of five years’ is what it says now. ‘This section should further be amended to state that terms shall begin on January 1st of the year of appointment.’ I don’t know exactly why that was there, but I do know that we heard it from Janet Fujioka and from, I think, the Planning Commission. Does anybody have any clue? I mean, I’ve got her letter here, but -

YUEN: Let me look into that. I’ll just make a note to look into that because I don’t remember what the issue was.

RAY: So we’ll follow up on that. Safety Coordinator.

HERKES: Have you heard from him?

RAY: I saw him today, and he told me he was going to come in and say something. He’s been saying that for nine months now. We’ll see.

YOSHIYAMA: I have a question on Safety Coordinator. So, this proposal just moves over two functions, rather than what did we have, (a) to (e), or (a) to (f)? And so that’s very clear. In our discussions, was it that it was redundant; the inspection of buildings and -?

YUEN: I think that the general discussion was that really the Safety Coordinator had, for a number of years, been confined to Workers Compensation and was not doing all these other things, and that most of these things are being done by people in the County, so I wrote this up so only move over the Work Comp function to Civil Service, and figured that somebody else was doing all these other things, like inspecting County equipment, buildings and facilities. I would expect somebody within the Department of Public Works is supposed to do that. ‘Review operating practices’. I think the agencies do that themselves. "Investigate accidents’. For personnel-type accidents, it’s a Workers Comp function. When it involves the general public, Corp Counsel has an investigator where they think there’s going to be a liability claim. The rest is a Work Comp.

YOSHIYAMA: Okay. Thanks.

RAY: Number 11. Qualifications of Heads of Departments of Public Works and Water Supply.

HIGASHI: Can we revisit that Safety Coordinator?

HERKES: Yes.

RAY: Right now?

HIGASHI: Yes, please.

RAY: Sure.

HIGASHI: Does it become a Civil Service position? What’s the intent here? Is it an exempt position?

YUEN: It would become Civil Service, yes. Actually, though, the way I’ve written it up, the Safety Coordinator, that position is abolished and if they want to create the equivalent position, it would be established as a Civil Service position. What I’m saying is that the Safety Coordinator right now is an appointed position. The language here would abolish that as an appointed position and transfer all the positions, which are now in the office, to the Department of Civil Service. It keeps those in existence, but if this is passed, the way I have done it here, you are short one person, the Safety Coordinator. We can write it differently so that it’s a position, not the person. What I’m saying is that you could create it so that you don’t lose that position. The position is transferred to Civil Service and becomes a Civil Service position, but you can’t put the existing person in that position. That would have to be done through Civil Service rules

of how that would be filled.

HIGASHI: Let’s not spell it out right now, but keep an open mind.

IRVINE: I guess I don’t understand, Chris. Were you saying that this would then be a Civil Service position rather than a person appointed?

YUEN: What I’m talking about is right now, you have a person who is a Safety Coordinator, and there are a number of other people in that office. The way I wrote it up is that the one person, the Safety Coordinator, that position, which is an appointed position, would be abolished, no longer exist. But the people in the office, who are Civil Service now, would have their positions transferred to the Department of Civil Service. That’s the way I wrote this up. Now, the Council can always restore that body, and put it in the Department of Civil Service, by establishing it as a Civil Service position. If you want to make it so that the Council doesn’t have to do that, we could write it up so that the position is transferred and becomes Civil Service.

HERKES: In my mind, I’m looking at duties and responsibilities rather than people. (a), (b) and (c) are duties and responsibilities that are not covered in other places in the Charter. In reality, they are covered in other places. In reality, there are other people that are doing them. The people that have the equipment are doing the maintaining. The operating procedures are all being reviewed by each agency, and investigating the accidents, I’m not sure who does that. But (d), (e) and (f) are all Civil Service responsibilities that go with that Civil Service thing.

YUEN: That’s the motion that was made and passed, that these kinds of things would be transferred to the Department of Civil Service.

HERKES: Right. Even the inspection of the equipment and buildings would go to Civil Service?

YUEN: No, and I thought the testimony about the Safety Coordinator was that they aren’t doing this now, so let’s fix it, and change it, so it doesn’t sound like they have to do it.

HERKES: I see what you’re saying, and if the Council feels that that’s something that needs to be done, they can restore the position.

YUEN: Let me say, like as sort of a general comment about the Charter, I think that even if you didn’t say in the Charter who is supposed to inspect County buildings, somebody would have that responsibility. You don’t have to spell out every function that the County ought to be doing in the Charter. Like the Department of Public Works, for example, it just says you have a Department of Public Works. It shall have whatever functions are assigned to it by ordinance. So I wouldn’t worry that they’re going to say, well, we don’t want to inspect County buildings anymore because they took it out of the Charter. Somebody has to do it.

HERKES: Well, actually, I was more worried that you were moving that to the Civil Service, and I didn’t want that moved.

RAY: Roland, any more questions on that one?

HIGASHI: I’ll talk to Chris later.

RAY: Number 11. Qualifications of Heads of Departments of Public Works and Water Supply. That’s the engineering. I’m sure we will be getting some testimony on this.

HERKES: Negative testimony or positive?

RAY: Opposing it. The Society of Engineers already called me right away.

HERKES: They wouldn’t have a conflict, would they?

RAY: But, I think we all understand that. Number 12. Impeachment. Chris, go over that issue that Bill Graham raised about it’s an island-wide basis for impeachment vs. if it were a district impeachment, single member, how all that -

YUEN: The Commission did vote to allow people from any district to sign an impeachment petition for a district Council member. I think that’s legal. Somebody called me up and asked me about it, didn’t think it was a good idea, and I said that whether it’s a good idea or not is up to the Charter Commission. It’s legal to do that. It’s legal to allow people to sign the impeachment petition even if they don’t live in that person’s district. Even though somebody represents a Council district, they are still a Council member for the island. The idea behind impeachment is that the person has done something seriously improper verging on illegal, and if you want to have it, then that’s up to you. If you want to confine it to the members of that person’s district, that’s also up to you. It changes, of course, how difficult it is to get what you’re counting your 3% against. If you’re counting against the whole island then, of course, it’s a lot of signatures to get out of your district. But it’s legal and it’s completely up to you. There is a big section in here that we didn’t discuss at the meeting, and that has to do with how to verify the signatures. There’s going to be about 2,000 signatures if you’re taking 3% of the people registered in the County, and the only way to do it is to have the County Clerk do the verification. And so I set up a procedure that basically follows the procedure for Initiative and Referendum, except that, and this was a modification that the Clerk suggested for Initiative and Referendum, you’re only going to get one crack at your signatures. In this case, it’s fewer. It’s not as many as an Initiative or Referendum, so it’s not as hard for the people to verify that they got that number of good signatures on their own. I included a time limit on the signatures. I think, as a legal matter, that if somebody started to get a petition in one term, and the person got re-elected, that the signatures would be voided by the re-election. There’s sort of a legal principle that re-election voids an impeachment. But rather than leave that open, I just spelled it out here and I put in an overall time limit of one year for getting the signatures. And as I mentioned, you folks haven’t voted on any of this language so I just wanted to prepare a draft of how it would look and present it to you for your further consideration.

IRVINE: Chris, I guess the call that I had, and I forgot, you were the one that said that Council members sort of represent the whole island, but this person said you’d have to have more signatures than the number of people that actually voted for that individual Council person.

YUEN: No, it wouldn’t work out to more. It works out to a lot of signatures, but you’ve got 3% of the people registered. You’ve got 9 Council members, so 3% times 9 is going to work out to about 27% of the number of people registered in your district, so it’s a lot of signatures for a district if you’re looking at it that way. If you had to get them all in your district, but you had to get 3% of the whole island, that’s 27%, roughly, of the registered voters in your district, which makes it more difficult actually than a recall, I think.

RAY: Any thoughts?

IRVINE: Let’s go out with it.

HERKES: I think this is one that people have to feel comfortable with, but I want 5%.

RAY: There’s trade offs on both sides, so let’s kind of see how people go on this. Having been in the County Council, it doesn’t seem that unfair that other folks could participate in impeachment. I mean, you are voting on island-wide issues. That’s your job, right? So, you’re not voting on that much that’s really specific Council related. It’s still island-wide so it doesn’t seem that unusual to me.

13. is Special Counsel. This is to eliminate the potential conflict that Corp Counsel brought up where they’d be required to supply Counsel. If the County Council didn’t approve it, they’d be stuck in a conflict, so Corp Counsel requested this change.

YUEN: Yes, that’s right, and I think we voted on this, actually. We cleared it with Corp Counsel, and I think we voted on it.

RAY: 14. Board of Appeals. This is one we might want to consider eliminating because we kind of got ahead of ourselves on this. We assumed we were going to go ahead and do this Division of Permitting and move things over. That’s why we voted on this, and now that’s something that may happen in the future. So, two thoughts - well, that’s one. The other is just to simplify the number of amendments. If we want to get rid of one and this is a little bit confusing in light of what we decided to do vs. what we had in mind when we originally did this. The basis of doing this was because we, pretty much, decided we were going to go ahead and do the Division of Permitting, so I’m just throwing that out there. It seems a little inconsistent with what it is we’re doing.

IRVINE: I think, having served on the Board of Appeals years ago, that it really belonged in the Planning Department. Then they did change what they do to hearing final appeals of the decision of the Planning Director or the Chief Engineer, which, maybe, makes it more of a conflict of interest for them to be in the Planning Department. I know the Corporation Counsel does not wish to have them under their jurisdiction, so I guess we just have to see where it goes. I don’t have a firm feeling on this, but it appears to be a conflict of interest to have them under the Planning Department and hearing those appeals.

RAY: So you’re speaking in favor of going ahead and doing this? I don’t have any strong feeling.

IRVINE: Yes, like I said, I don’t know. I’m just talking.

HIGASHI: But I believe that was the feeling that was sort of a conflict of interest. That’s why we searched around to put it different places, and then we were going to put it under Public Works, but they also have a division, Board of Appeals, in terms of engineering and building, so for lack of a better place, we put it under Corp Counsel.

RAY: Chris, any thoughts?

YUEN: I honestly don’t think it matters that much. If I were to say where it had the least conflict of interest, but they still have somebody that could do the servicing, I would say the Mayor’s Office, frankly, because the administrative functioning of the Board of Appeals, they need to have somebody who sends out notices to people that they’re going to have meetings, that calls the Commissioners if they have a change in place. It’s that kind of administrative liaison, I think we’re talking about here. Corp Counsel has an attorney who is advising, very often, the person who is against what the Planning Director had done before. But I think it’s more of a perception thing than reality, and there it’s difficult because people can perceive conflicts of interest wherever the thing is placed, which is why I began by saying I don’t think it’s that big an issue.

HERKES: I like that. I think that’s a good idea, but I think the Board of Appeals could be enlarged into being an ombudsman for the citizens in the County in the Mayor’s Office in order to provide services. But that’s down the road. That probably isn’t now, but I like that under the Mayor, Administrative. I think that’s much better than the Corporation Counsel. I’ve been through hearings in the Legislature, trying to put the small business defender somewhere. Can’t go into DBEDT, and so they put it in Budget and Finance, and one of the Finance Committee members said, well, maybe we’ll just put it in Budget and Finance because that’s who’s got the money, and I said, well, that’s not a bad reason. But it’s hard to find places to put these Boards and Commissions that doesn’t have a conflict somewhere.

IRVINE: Maybe it’s time to maybe just move that we drop this from our consideration since it doesn’t seem to be terribly important and we can’t find the perfect place for it.

MARTIN: That’s a fabulous idea and I think a motion is in order.

IRVINE: I so move.

MARTIN: Second. Next.

YUEN: You know what. Since you’ve got a big summary which includes this print-up, I hear what you folks are saying, but you can drop it later. How’s that? You know why? Because if you drop it now then you’ve got this summary that’s gone out.

HERKES: We have a motion on the floor with a second.

IRVINE: Fine. I withdraw my motion.

HERKES: And I’m going to vote ‘no’ on it, and I want to vote.

YUEN: You have the veto power, being that you have only six members here to vote.

RAY: We’ll follow that recommendation and who knows, we might get some interesting testimony. Number 15. these Department Head Qualifications. So the only change there is we include Finance in here, right?

MARTIN: Well, that and -

YUEN: Could I ask a question? The Planning Director now has been changed, not just moved, but before the Planning Director is an either/or. I wrote this up the way that I thought it had been voted on, but the change would be that the Planning Director would have to have five years experience, three years in an administrative capacity. The present Charter says that you can do that, five years training experience in a responsible Planning position, or you can have a degree and three years experience. And I don’t know which is tougher, but do we specifically want to make that change?

RAY: I like the way it is now.

HIGASHI: Why don’t we go with what we have now and see what happens.

HERKES: But we moved it from an education to an administrative position, and that’s consistent with all our Department Heads, that we put more of an administrative slant on it. We could have five years experience or a degree. It didn’t say ‘and a degree’, or three years experience, but it doesn’t say administrative, and that’s what, I think, is consistent with everything else we did.

YUEN: I just raise as a question, but this was the way it was voted on. Just to let you think about that.

HERKES: So for sure there is at least three years in administration.

IRVINE: I think you wrote it up the way we intended.

RAY: Anything else on that section? Number 16. Police Commission. I think the changes here is that we found some language we liked in the Fire Commission so we moved that over to the Police Commission, and then the other two changes were at the end there, (6) and (7), ‘evaluate at least annually the performance of the police chief’. So, that’s just some additional language in regard to Statement of Policy, and then calling for an annual review.

HERKES: I like that Statement of Policy.

IRVINE: Thank you. So do I.

RAY: They called me about this. They had just seen the summary so they didn’t know what it was all about, and I faxed them all this. I didn’t hear back from them. I explained to them where it came from.

IRVINE: Chris, I was wondering, the present Police Department amendments that we had in here, I’ve never figured out the numbering, or whatever, on this. Was it a little weird or something?

YUEN: You mean the way the numbering is done on the -

HERKES: Police Commission or Police Department?

IRVINE: In here, in the Charter, the present Charter.

YUEN: Okay, the present Charter.

IRVINE: So you think yours is consistent? I didn’t check yours, but I bet it makes sense. The present one -

YUEN: I’m sorry. I didn’t bring my flyleaf.

IRVINE: Yes, it’s on a little piece of paper.

YUEN: The powers are the same.

IRVINE: Yes, (e), (f). They just go Section 2, Section 3, but they never said Section 1 or anything.

HERKES: Yes, it’s weird.

IRVINE: It’s strange. Let’s not worry about it. Yours looks good.

YUEN: No, I don’t understand.

IRVINE: Okay, Marni thinks she does. It’s all right. I don’t know why I brought it up.

HERKES: I think it’s weird too. I couldn’t figure it out and Bob helped write it. Bob and Reggie wrote it. I said what did you want to do with this.

RAY: 17. Water Commission. There’s just the change to district representation.

HERKES: That’s the only change. Oh no, transition.

MARTIN: Well, that’s the only change but Chris brings up an interesting note on the back page for follow through. What happens to present Commissioners that live next door to one another?

YUEN: That’s why I put that in. They continue to serve regardless of the fact that they live next door to each other, and that when their term ends, the vacancy must be filled by a member of a district that does not have a representative.

RAY: I think that’s fine. I think that’s a good way to transition it. Milton told me they were going to oppose this anyway, but I told him I felt strongly about it.

HERKES: Milton’s going to oppose it?

HIGASHI: Oppose what? The nine districts?

HERKES: Why?

RAY: I told him, it’s just nuts the way it is now. He’s going to come in to the Hilo meeting.

HIGASHI: Still not finished with the Environmental Department, yeah?

HERKES: Wait until we get through with him.

IRVINE: Yes, right.

RAY: We’ll give him an option, either that or wastewater.

MARTIN: Hey, leave water out of it. You don’t want me to call Kevin in here, okay.

IRVINE: Unless they harass us.

HERKES: Where is Kevin?

MARTIN: Kevin will be here if I need him.

HERKES: Well, it’s too late.

RAY: Salary Commission. If people ask to describe, is it accurate just to say Department Heads and Deputies, because it does include some other positions, right?

HERKES: Three County physicians.

RAY: Suppose somebody asks about the County Clerk?

YUEN: The County Clerk is under the Salary Commission, under this proposal. The Charter says the County Clerk is like a Department Head.

RAY: The Charter says that?

YUEN: Yes.

RAY: I think people are going to ask specifics on that so it would be good -

YUEN: Well, we’ll just bring the list the Salary Commission brought. I think that we voted to have everything on that list included except the physicians and the Band Director.

RAY: Can you have that list?

HENRY: We all have copies of that list, but I’ll remake it. The one that Mr. Ben furnished? Yes.

RAY: Just bring it Saturday. Any more questions on that? And finally, the Cost-of-Government Commission.

MARTIN: Back to that Salary one. Isn’t that why we have Chris on retainer, so he can answer the questions like this?

RAY: I’m glad you asked that. I told Chris I didn’t think he needed to be at all the public hearings. We can talk about this. I told him I’d really like him to be at the Kona one because I think there’s going to be a lot of, kind of, West Hawaii County things come up, that I’d like to have him there for that.

HERKES: I really want to say what Daryl told. We’ve been getting phone calls about a special meeting. We want to come to a special meeting? They called Daryl and Daryl says we’ve been meeting every month for a year. Why don’t you come to our meetings? Go ahead, John, I’m sorry.

RAY: The way it stands right now is that Chris would not be at Waimea meeting this week, nor would he be at the Hilo meeting the following week, on the 18th. And he’d be at the Kona one on the 25th.

IRVINE: Is this because you can’t come or because John dismissed you?

RAY: I’m just trying to be reasonable in terms of budgeting his time and money, and whatever, but it’s open for discussion.

HERKES: And I agree with you.

RAY: Why don’t we do this? Why don’t we see how we do at Waimea.

MARTIN: Do we have your pager number just in case Waimea gets a little out of hand?

RAY: And if it’s uncomfortable, we could ask him to be here for the Hilo meeting.

HERKES: These are public meetings for us to take testimony, not for us to make decisions, right?

RAY: Right.

IRVINE: But Chris is sometimes helpful. Well, maybe tonight you were helpful in trying to clarifying Hawaiian issues, or something. That wasn’t particularly clarifiable, but you do, sometimes, help. But maybe we just have to bring that information back to you and tell the public we will talk to our attorney about this.

YUEN: That’s always a good thing to say. If I’m not there, you can say, well, we need to take that up with our attorney who couldn’t be here.

IRVINE: Okay, I’ll let you go.

YUEN: If I’m there, I might just jump in right there and cause more problems than I solve.

RAY: So, we’ve gone through the proposed Charter Amendments. Under New Business, I don’t know if you recall, but last May, we got testimony from Corporation Counsel and they made a number of recommendations, a bunch of changes about Mandatory Program Review, the Special Counsel we adopted, Safety Coordinator, Board of Appeals. They made a number of recommendations to the Water Commission. Now, we checked with them and they didn’t seem to be that problematic.

IRVINE: What? Water Commission?

RAY: Water Commission. Yes, just language changes. So, they didn’t seem to be really problematic, but the one that Mr. Wurdeman did come back and that he feels more strongly about is the Redevelopment Agency being really unnecessary, and we’d have to address that in the Charter. So, I’d like to recommend that we agendize that specifically for discussion at our regular meeting next month, to publicly notice it since, I know, some people, one person anyway, is extremely interested in this issue. So, just to cover our okoles on that, so we’ll agendize it for the April regular Charter Commission meeting and discuss it then, and we’ll distribute -

HERKES: Can you get us a little background on the Redevelopment Agency before we discuss it? I’m extremely familiar with it but I don’t think everybody is.

YUEN: I’ll send, like, a one page letter. I think that will explain what the issues are, before the meeting next time.

RAY: Announcements. Our next meeting dates.

IRVINE: I just had one other thing. It’s old business really, it’s not new business, but is everybody comfortable with the fact that when the Mayor decided he might run again, he said there was no provision in our Charter between two years and 60 days before his term expired, saying what happened. And Chris tried to explain this to us, but I was, kind of, with the Mayor, it wasn’t spelled out.

MARTIN: It’s not. We discussed it at some length and we could not actually put wording in there that would stop anybody from resigning and then taking up the position that they could run again. It’d be legal.

YUEN: I think it would be illegal and I can explain why.

IRVINE: But do you think it says so in our Charter?

HERKES: He thinks it would be illegal by the wording that’s in the Charter now.

YUEN: Yes. Let me, briefly -

IRVINE: Try again?

YUEN: Do you want to get into this?

HERKES: No.

IRVINE: People don’t want to hear about it.

YUEN: I think it’s clearly illegal. I think the idea, say, by resigning for a day, having the Managing Director take over as Mayor, appoint you Managing Director, have the new Mayor resign and the old Mayor become Mayor again, and then saying that you have not served two full terms and you can run again, I think that’s plainly absurd and not legal.

MARTIN: That’s not quite what he discussed doing.

HERKES: Didn’t he say he was looking into it?

MARTIN: But in that manner, the court system we have today would probably agree with you. Unfortunately, they’d be wrong there too.

YUEN: As a technical point, just in case we do not have six members at any of the public hearings, I want us to take a little precaution in advance right now, and somebody to make a motion to authorize less than a quorum of the Commission to take testimony at the public hearing for the purpose of investigating public opinion on the Charter Amendments, and that the members who are there will then, by virtue of us having a transcript of the meeting, report back to the full Commission as to what happened.

HERKES: So moved.

RAY: Can I have a second?

MARTIN: Second.

RAY: All in favor?

COMMISSIONERS: Aye.

RAY: The next regular meeting date is April 12th, the second Wednesday in April, and of course, before that -

? Here?

RAY: Yes, here, our regular meeting. That’s good because we’ll have had all the public hearings by then.

HERKES: What’s our schedule on approving all the measures to go on the ballot? April 12th will be a meeting. Will we expect to have some finalization coming up there?

RAY: I doubt it, in one meeting, but let’s see where we are then.

HERKES: We sailed through tonight pretty well.

RAY: Let’s see where we stand.

HERKES: If we don’t do it April 12th, are we going into May to do it then?

RAY: I would anticipate that we’d have another meeting and try and get it wrapped up sooner rather than later.

MARTIN: The first two weeks of May I’m gone.

IRVINE: I’m gone later in May.

HERKES: So, let’s not worry about who’s here, who’s not. I want to know what this schedule is. So, you would anticipate that maybe May?

RAY: I don’t know, Marni, depending on how the public hearings go, and what may or may not come up. I’d say if we’re not dealing with anything new and we’re just refining what we have, then another -

HERKES: I remember at one time you said June was when you wanted to have something finalized.

RAY: Taking final votes and giving Chris the go ahead, and then we’ve got to come up with the language.

YUEN: For the ballot, yes, that goes on the ballot.

HIGASHI: We need to come up with a digest too.

YUEN: Yes, you’re right. We need a digest for the voters, a little more detailed summary than we have here.

HERKES: Right, so that’s what I’m trying to look at. What’s the schedule here?

YUEN: I should have this in the back of my head, but the Clerk gave us a deadline.

IRVINE: I think August 1st, we had to have it there.

RAY: No, it’s like September so we’ve plenty of time.

HERKES: I don’t think so. It was August.

RAY: I think we, kind of, tentatively agreed that we’d like to have it done by June.

IRVINE: ‘Charter Commission submit ballot language in final form and digest of Charter Amendments to County Clerk August 1st’, according to Al Konishi.

RAY: Yes, August 1st, but I think we agreed that we’d like to get this thing wrapped up by June.

HERKES: Well, I just think it’s time to start looking at a time line. We have to do this by this, and this by this, and this by this, so that we make that deadline.

RAY: I don’t know that we have to decide that tonight.

HERKES: No, we don’t but I really encourage us to start looking at the thing.

RAY: I would anticipate that we’d call an all day meeting in Waimea to get the bulk of the work done, if that’s what we need to do.

HERKES: You really want another one of those? We’ll have four all days.

RAY: I want to get it done.

IRVINE: I think a daytime Saturday in Waimea is better than trying to get it all done here.

RAY: That’s what I say, let’s see where we are. We’re not going to stay here till midnight on April 12th to get it done. That’s what I’m saying. I anticipate we’ll have another day meeting to really knock things out.

Next meeting date, I’ll coordinate with Sharron as far as the public hearings, so I think the Kona one, I’d like to ask as many people as possible to come to that. I think we’re going to get more input there.

YOSHIYAMA: I have a question, John, on public hearings, like Waimea being the first. I understand we’ll be there until we’ve heard all public testimony. How long we’re going to stay? We going to wait around? Anybody got any feelings?

HERKES: It says at 9 o’clock.

YOSHIYAMA: Yes, we start at nine, but then we run out by 10, 10:30, 11. What, we wait the rest of the day?

RAY: Oh, no, no, no. We’ll just take it till they’re pau.

YUEN: No, you leave when people are done.

YOSHIYAMA: Okay.

RAY: No, we’re not obligated to be there any longer than people are there to testify.

Motion to adjourn?

MARTIN: So moved.

RAY: Second?

YOSHIYAMA: Second.

RAY: All in favor?

COMMISSIONERS: Aye.

RAY: Okay. thank you.

The discussion ended at 7:45 p.m.

Respectfully submitted,

Sharron Henry

Secretary-Administrative Assistant